IME “Independent” Medical Exams: Protect Your Rights
When insurers require exams, they select and pay the doctor(s) who do these exams. If you refuse any exam, the insurer can deny benefits. The process can be fairer if you know how to protect your rights.
1) Find out what the purpose of the examination is in advance.
a) If the purpose of the examination is to determine the cause of your illness, and your illness was caused by toxic exposure, the physician should have training and experience in toxicology.
Request curriculum vitae on the doctor(s) to ensure that adequate training and experience is present in toxicology. At a minimum, this should include several semester courses in toxicology, as well as continuing education conferences on toxicology and ideally publications demonstrating competence in toxicology.
b) If the purpose of the exam is to determine whether you need a specific treatment, inquire about the physician's experience as a treating physician for patients with your medical condition.
This can be done through your attorney or you can call and ask a staff person whether that doctor is a treating physician for reactive airways disease or other chemical injury patients and whether the physician follows such patients over time as a treating doctor.
In my experience, insurance physicians have never been treating physicians for toxic encephalopathy or reactive airway disease or any other form of chemical injury. Just as a physician who does not treat diabetics is not an expert in diabetes, physicians who do not treat chemical injury are not clinical experts in chemical injury and should be disqualified from rendering any opinions relating to whether treatment is necessary.
All clinicians know that it is necessary for a physician to prescribe treatment and follow patients over time to determine how effective that treatment is in order to have clinical expertise regarding whether particular treatments are effective. A physician who does not do this with patients is not qualified to render an expert opinion regarding whether a specific treatment will be effective for your medical condition.
2) Is the doctor in the correct specialty?
a) For occupational exposure where causation is an issue, significant occupational medicine physicians may have 2-3 years of training but many only have a few weeks or a couple of months of training. Those with short training lack expertise to determine toxic cause.
b) If you have brain or neurologic effects, be aware that neurologists typically lack training to evaluate for toxic encephalopathy. The most sensitive tests for this diagnosis are called neurophysiologic tests. See that section on this website for more information on those tests.
Testing for how well you think, remember and concentrate and do other “cognitive” functions are called neurocognitive tests. These tests are done by clinical psychologists and by some well-trained occupational medicine physicians. They are not done by neurologists (except basic functions to rule out stroke, Alzheimers).
3) Is the medical history and physical examination conducted in a competent manner?
Taking a tape recorder with you to the examination will help you to remember what questions were asked and what your answers were. If you have difficulty with short-term memory, attention span or other cognitive problems, you have a condition that affects a major life activity of thinking. In this case it is a reasonable accommodation under the Americans with Disabilities Act for the examining physician to allow you to make a recording to help with your memory. You can then use this to ensure that the report issued by the examining physician is consistent with the recorded record.
An even better technique is to bring someone with you who can make a video recording of the history and exam. For example, this was used by a patient of mine who has memory difficulty. When I viewed the videotape of the neurologist, it was clear that he asked questions far too fast for even a person with a healthy brain to be able to answer. In addition, his neurologic examination was incompetent. For example, he held the tuning fork upside down! For other parts of the neurologic exam, he did not use neurologically accepted, standardized equipment. Balance testing was not conducted a competent manner. A competent physician should not object to patients making an audio or video recording. It is a courtesy to ensure that the physician is aware that he or she is being recorded. Some states also require this by law, and I think it is wise ethical practice. I invite my patients to make a recording to help their memory, and I have no objection to either audio or video recording to help the patient with memory or other reasonable accommodations. I use examination techniques that are medically and scientifically accepted, so that recording my medical history and/or physical exam and neurologic exam would help document my competence.
No physician who has good competence should object to recording the procedure, especially for a patient who has difficulty with memory and wants to be sure to have an accurate record of the entire event is preserved.
CHEMICAL EXPOSURE HISTORY: Accepted Medical Criteria
Medically recognized criteria are available for taking a proper history of chemical/toxic exposure. These are used to evaluate illness caused by exposures.
These criteria include:
1. The relationship in time between the onset of illness and toxic exposures.
2. Improvement of symptoms during times away from exposure (e.g., vacations, etc.).
3. Recurrence or worsening of symptoms after re-exposure.
This basic information requires a more detailed history if the above information suggests potential toxic exposure. Additional information should include a more detailed exposure history, including information on duration and intensity of exposure, how the person worked with or was exposed to the toxin, how absorption into the body could have occurred, and protective measures such as respirators, protective clothing etc. to reduce exposure.
When possible, physicians are encouraged to obtain more detailed exposure history such as safety data sheets, etc. under the Hazard Communication Standard.
While these criteria have long been recognized, they were published in the Journal of the American Medical Association 256: 678-680, 1991. The authors are national experts in occupational disease: Dr. Landrigan and Dr. Baker at the Mount Sinai School of Medicine, New York, NY.
4) Is the physician truly independent?
When the insurer is paying for the exam, obviously the physician knows that and the insurer is likely to select physicians who will give opinions that do not threaten insurance profits.
If the curriculum vitae is not sufficiently clear, you should legitimately be able to ask the physician about his or her income sources, such as the approximate percentage of income earned from insurance exams, insurance/consultation versus the approximate percentage of income obtained independently as a treating physician. This helps to evaluate the extent to which the physician is financially dependent on financially interested corporate entities. There may be Internet information on the physician and support groups who can assist you in this vital information area.
5) Request reasonable accommodations.
It is not reasonable for you to be required to attend an evaluation, which will make you sick. When needed, ask for reasonable accommodations that apply to your illness. You are a qualified person under disability legislation and regulations if your condition interferes with a major life activity of breathing or thinking. For example, If the physician is a treating physician for chemically injured patients, these reasonable accommodations should already be in place. Thus refusal to provide them indicates lack of physician experience and/or ethics vs chemically injured patients.
Reasonable accommodation for any medical examination for a person whose symptoms are worse with exposures listed below can include:
a) Minimizing your waiting time to avoid unnecessary exposure to cleaning products, scented products, carbonless paper, pesticide residue, etc.
b) Access to a restroom that does not use chemical air fresheners or other irritants.
c) A physician and staff that does not wear scented products or clothes that have been recently dry cleaned or clothes with fabric softener residue. Because fabric softener clings to clothing for several washings, residue from previous laundry will contaminate the newly washed laundry without fabric softener. The ideal situation is obviously an office policy that has been in place for several months or longer in which staff and physician do not use fabric softener products on any of their laundry. Softening the water is quite adequate in my experience.
d) Avoid any exposure to carbonless paper. Carbonless paper should not be used or stored near the area where you are waiting or in the exam area because of irritants and sensitizing chemicals in the microcapsules. These rupture in use and storage.
e) Nontoxic Pest Control
A physician who is experienced with chemical injury will know that nontoxic pest control while waiting in examining areas is essential to protect the health of chemically injured patients. Inquire about the last time pesticides were used in the waiting or examining areas of the medical office.
Also inquire about the use of germicidal agents. For example, glutaraldehyde is neurotoxic, a respiratory irritant, and unnecessary because there are less toxic means of germ control. I recommend the excellent website www.beyondpesticides.org. Surgeons who care for chemically injured patients have good control of infections by using green soap, for example, for surgical scrubbing. I personally have not encountered insects or other pests that could not be controlled with various forms of boric acid or nontoxic bait or sticky traps.
If the medical office objects to these control measures as burdensome, this is a clear indication that they are not familiar with the medical needs of the chemically injured and that the physician is highly unlikely to be a treating physician for chemically injured patients. I strongly feel that if you are denied these basic reasonable accommodations, you should insist that another physician be selected who will provide the reasonable accommodations you need.
6) Psychiatric Misdiagnoses.
It is relatively common for doctors who limit practice to one or a few organs to carelessly use psychiatric diagnoses in disregard of the American Psychiatric Association's Diagnostic and Statistical Manual. If you are given a psychiatric diagnoses, I strongly recommend that you consult the DSM IV manual which can be obtained on inter library loan from a local library. In my experience, chemically injured patients with false psychiatric diagnoses almost never meet the DSM IV diagnostic criteria.
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